Punjab-Haryana High Court
Reliance Communications ... vs Rajesh Chawla on 23 February, 2010
Author: L.N. Mittal
Bench: L.N. Mittal
Civil Revision No. 7083 of 2008 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Civil Revision No. 7083 of 2008
Date of decision : February 23, 2010
Reliance Communications Infrastructure Ltd. And others
....Petitioners
versus
Rajesh Chawla
....Respondent
Coram: Hon'ble Mr. Justice L.N. Mittal
Present : Mr. DK Singhal, Advocate, for the petitioners
Mr. MK Sangwan, Advocate, for the respondent
L.N. Mittal, J. (Oral)
Defendants have filed instant revision petition under Article 227 of the Constitution of India impugning order dated 25.11.2008 passed by learned Civil Judge (Junior Division) Rohtak, thereby dismissing defendants' application filed under section 8 of the Arbitration & Conciliation Act, 1996 (in short, the Act) for referring the dispute between the parties involved in the suit, to arbitration.
Plaintiff-respondent Rajesh Chawla filed suit against the defendants claiming various reliefs on the basis of two distributor agreements dated 10.3.2006 Annexure P/1 executed by defendant no. 1 and Civil Revision No. 7083 of 2008 -2- plaintiff and agreement dated 25.6.2007, Annexure P/4 executed by defendant no. 3 with the plaintiff. Defendant nos. 1 and 3 executed the said agreements through defendant no. 2.
The defendants in their application under section 8 of the Act pleaded that as per clause 10 of both the agreements dated 10.3.2006 and 25.6.2007, the dispute between the parties raised in the suit by the plaintiff is required to be referred to arbitration because the agreements contain arbitration clause.
Plaintiff-respondent opposed the application filed by the defendants under section 8 of the Act and inter alia pleaded that the application being not accompanied by the alleged agreements is not maintainable. It was also pleaded that both the agreements have since expired and currently agreement dated 10.3.2008 is in force and the said agreement does not contain any arbitration clause as per knowledge of the plaintiff.
Learned trial court dismissed the application moved by the defendants under section 8 of the Act on the ground that same is not accompanied by original arbitration agreement or certified copy thereof as per mandatory requirement of section 8(2) of the Act.
I have heard learned counsel for the parties and perused the case file.
Learned counsel for the petitioners contended that as per judgment of Hon'ble Apex Court in the case of Bharat Sewa Sansthan versus U.P. Electronics Corporation Limited, 2007(2) Rent Control Reporter 317, even photostat copies of the lease agreements containing Civil Revision No. 7083 of 2008 -3- arbitration clause could be taken on record under section 8 of the Act.
On the other hand, learned counsel for the respondent relying on judgment in the case of India Lease Development Ltd. and another versus Thimmakka, AIR 2003 Karnataka 97 contended that rejection of application under section 8 of the Act is justified if neither original arbitration agreement nor its certified copy is filed.
I have carefully considered the rival contentions. Neither of the aforesaid judgments cited by learned counsel for the parties is relevant in the instant case because the plaintiff himself has based his claim in the suit on the basis of agreements dated 10.3.2006 and 25.6.2007. Learned counsel for the respondent concedes that plaintiff even attached copies of the said agreements with the plaint. In view thereof, requirement of section 8(2) of the Act stood substantially complied with inasmuch as there is no dispute between the parties that the aforesaid agreements were entered into by the parties and copies thereof were on the record of the civil suit and there was no dispute about the same. Consequently, application filed by defendant under section 8 of the Act could not be dismissed on the ground that it was not accompanied by original agreement or its certified copy, when copies of both the agreements had been relied on by the plaintiff himself.
As regards plea of plaintiff-respondent that the agreements had expired, the said plea is not sufficient to reject the application moved by defendants under section 8 of the Act. Arbitration clause 10.1 contained in the aforesaid agreements, which is identical in both the agreements is reproduced herein:-
Civil Revision No. 7083 of 2008 -4-
"10.1 The parties shall first attempt to resolve any dispute in connection with the Agreement by negotiation. Such negotiation shall be between the senior management personnel of the parties, as designated by the parties at the relevant time. If the parties are unable to resolve the dispute within thirty (30) days through negotiation, then either party may refer such dispute to arbitration. If any dispute shall arise between the parties with reference to the interpretation of this Agreement or with rights in respect of any of the transaction involved whether before or after its termination, such dispute shall be referred to two arbitrators, one to be appointed in writing by each party. The Arbitrators so appointed shall appoint a third or Presiding Arbitrator. All the arbitrators shall be appointed within fifteen (15) days of reference of a dispute by either party to arbitration.
The arbitration shall be held at Mumbai, India under the provisions of Arbitration and Conciliation Act, 1996 or any statutory modification or re-enactment thereof for the time being in force in India."
Perusal of the aforesaid arbitration clause reveals that the dispute between the parties arising out of the agreements has to be referred to arbitrators even when the dispute is raised before or after the termination of the agreement.
Learned counsel for the respondent also contended that currently another agreement dated 10.3.2008 is in force but the said agreement was not filed by the defendants with their application under section 8 of the Act. In support of this contention, learned counsel for the respondent drew attention of this Court to paragraph 6 of the application moved by the defendants under section 8 of the Act which refers to agreements dated 10.3.2008 and 25.6.2007. However, as rightly responded Civil Revision No. 7083 of 2008 -5- to by learned counsel for the petitioners, this is only a typographical error in the said paragraph of the application and in fact application referred to agreements dated 10.3.2006 and 25.6.2007. This is also apparent from paragraphs 3, 5 and prayer paragraph of the application which referred to agreements dated 10.3.2006 and 25.6.2007. A bare perusal of the application reveals that reference to arbitration was sought on the basis of arbitration clause 10 contained in agreements dated 10.3.2006 and 25.6.2007.
In addition to the aforesaid, even plaintiff has not referred to any agreement dated 10.3.2008 in his plaint nor the dispute raised by the plaintiff in the suit referred to alleged agreement dated 10.3.2008. Consequently, even if it is assumed for the sake of argument only that an agreement dated 10.3.2008 was also in existence, the same has no bearing on the instant case because the dispute is not arising out of the alleged agreement dated 10.3.2008. On the other hand, the dispute relates to agreements dated 10.3.2006 and 25.6.2007. It may also be added that as per paragraph 3 of the plaint, agreement dated 25.6.2007 is for seven years and has, therefore, not expired whereas agreement dated 10.3.2006 has been renewed from year to year and stood renewed upto 31.3.2009 and was, therefore, operative when impugned order dated 25.11.2008, Annexure P/5 was passed. Thus, it is apparent that the agreements in question had not expired or lapsed till the impugned order was passed by the trial court.
From the aforesaid discussion, it becomes manifest that the impugned order of the trial court is manifestly illegal and unsustainable in law. Accordingly, the instant revision petition is allowed and impugned Civil Revision No. 7083 of 2008 -6- order dated 25.11.2008, Annexure P/5 passed by the trial court is set aside and the dispute between the parties is ordered to be referred to arbitration in accordance with clause 10.1 of the agreements dated 10.3.2006 and 25.6.2007. The trial court shall do the needful in accordance with law.
( L.N. Mittal )
February 23, 2010 Judge
'tiwana'